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The BIA case is Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), which held that "aliens who are present in the United States without admission are applicants for admission as defined under Section 235(b)(2)(A) of the INA... and must be detained for the duration of their removal proceedings." In the words of an American Immigration Council analysis, Matter of Yajure Hurtado, "creates a sweeping new rule that strips most noncitizens who entered without inspection of the right to seek bond from an IJ [Immigration Judge], regardless of how long they have been residing in the country and where they were apprehended by immigration authorities." Essentially, this means that every non-citizen who entered the country without a visa is now subject to mandatory detention until their Immigration Court case is completed.
How many people are we talking about? The Pew Research Center estimates that there are about 14 million "unauthorized immigrants" in the United States: 6 million who have some type of legal protection (such as a pending asylum case or TPS) and 8 million with no legal protection at all. I'd guess that easily 8 to 10 million of these people entered the United States without inspection and are now subject to mandatory detention under Yajure Hurtado. Our current detention capacity is approximately 62,000 people, which is less than 1% of the total who could be detained pursuant to Yajure Hurtado.
This is obviously bad news, but I promised you some silver linings, so here are a few. First, this is a decision from the BIA, which is subject to review by federal courts. So far, numerous federal courts across the country have found that non-citizens who previously entered without inspection are subject to detention under INA § 236, and not--as decided in Yajure Hurtado--INA § 235(b)(2). Such non-citizens may be eligible for release on bond.
Second, non-citizens can still challenge their detentionby filing a petition for habeas corpus in federal court. Such a petition does not get a person released, but if successful, it will at least allow you to request a bond from the IJ.
Finally, for those non-citizens who entered the United States with a visa, the likelihood of detention has probably gone down. That's because the government has limited bed space to hold people, and if they are required to lock up everyone who entered without inspection, they will have precious little capacity to detain anyone else. So I guess that's something.
The other piece of recent bad news is a U.S. Supreme Court decision called Vasquez Perdomo v. Noem, 606 U.S. XXX (2025). In that case, a Federal District Court found that ICE was targeting people based "solely on four factors: (1) their apparent race or ethnicity; (2) whether they spoke Spanish or English with an accent; (3) the type of location at which they were found (such as a car wash or bus stop); and (4) the type of job they appeared to work." The court found that these factors did not satisfy the Fourth Amendment's requirement that people should only be stopped by law enforcement where there is a "reasonable suspicion" of wrong-doing, and it enjoined (blocked) the practice while it considered whether long-term relief was appropriate.
Without providing any explanation, the Supreme Court stayed (blocked) the injunction, which allows ICE to continue targeting individuals based on these several factors.
In a concurring opinion, Justice Kavanaugh minimizes the harm caused by ICE's actions. "If the person is a U.S. citizen or otherwise lawfully in the United States," he writes, "that individual will be free to go after the brief encounter." Easy peasy. However, I'm guessing that for those targeted (possibly repeatedly) by masked and armed ICE agents, any "brief encounter" is likely frightening and traumatic.
Justice Kavanaugh also stresses that courts must defer to the Executive Branch on immigration policy: "We merely ensure... that the Executive Branch acts within the confines of the Constitution and federal statutes." Apparently, that allows for targeting people based on their race, job or language.
In her dissent, Justice Sotomayor describes numerous instances of violence and intimidation perpetrated by ICE agents, including the following--
immigration agents arrived at a tow yard in Montebello carrying handguns and military style rifles. Jason Gavidia, a Latino U.S. citizen, was working on his car in the tow yard that day. A masked agent ordered Gavidia to “stop right there” and began asking him questions. Agents then asked Gavidia whether he is American at least three times; three times, Gavidia affirmed that he is. Unsatisfied, the agents asked Gavidia for the name of the hospital in which he was born, and when Gavidia could not immediately recall, the agents racked a rifle, took Gavidia’s phone, pushed him up against the metal gated fence, put his hands behind his back, and twisted his arm. Agents released Gavidia only after he offered up his REAL ID. That ID was never returned to him.
I suppose this is what Justice Kavanagh would call a "brief encounter." Justice Sotomayor concludes that we "should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job." "Rather than stand idly by while our constitutional freedoms are lost," she writes, "I dissent."
This is obviously pretty grim. The only possible silver lining is that this is an interim decision about whether the District Court injunction against ICE can continue. Perhaps we will get a better decision when and if the Supreme Court reaches the Fourth Amendment claim itself. Given how the Justices ruled here, that seems unlikely, but one never knows.
I suppose that is enough bad news for one day. I for one will try to focus on the silver linings, as we need to take our (sort of) good news where we can find it.
Originally posted on the Asylumist: www.Asylumist.com
